Publication - Guidance

Community right to buy: guidance for applications made on or after 15 April 2016

Published: 21 Mar 2016

Guidance for community bodies, landowners and creditors in a standard security with the right to buy the land and third parties with an interest in land to be registered under the community right to buy provisions.

142 page PDF

1.5 MB

142 page PDF

1.5 MB

Contents
Community right to buy: guidance for applications made on or after 15 April 2016
Section 2: Guidance for Landowners and Creditors in a Standard Security With the Right to Sell the Land

142 page PDF

1.5 MB

Section 2: Guidance for Landowners and Creditors in a Standard Security With the Right to Sell the Land

2.1 The landowner and creditor in a standard security with the right to sell the land

1. As a landowner or creditor in a standard security with the right to sell the land, or rights (hereinafter referred to as “land”), your role is vital to the community right to buy process. This is because, in order for a community right to buy to be activated and for a community body ( CB) to purchase land in which it has registered a community interest (under Part 2 of the Land Reform (Scotland) Act 2003 (“the Act” or the “2003 Act”) as amended by Part 4 of the Community Empowerment (Scotland) Act 2015 (“the 2015 Act” ), you must be a willing seller: you must wish to dispose voluntarily of the registered land. It is therefore for you to decide when you want to sell the land, how much land you wish to sell and how the land for sale is lotted ( CBs only have a right to buy registered land under Part 2 of the Act: any other land needs to be acquired by agreement, outwith the provisions of the Act). The community right to buy will not be activated if you do not want to sell the land.

2. The community right to buy does not prevent you from developing your land, subject to any necessary planning approval. CBs should not use the right to buy as a way to stop you from developing the land in any way. If you wish to develop your land for housing or for other purposes that come under the planning process, these are for the planning authority to determine and not for the community right to buy process. These two processes are entirely separate matters and are in no way related. The existence of an application to register a community interest in land or a registration on that land will not affect Scottish Ministers’ (Ministers) consideration of any planning matter which may subsequently come before them for determination in terms of the relevant planning legislation.

3. If you have entered into an option agreement before a CB’s application to register an interest in your land has been submitted to Scottish Ministers, the application from the CB will not be considered. If, however, Ministers find that an option agreement put in place after a valid application has been submitted to them, it will be deemed to have no effect.

2.2 Community bodies and your role with them

4. A Community Body ( CB) must take one of three legal forms. The first is a company limited by guarantee ( CLBG) (section 34(1) of the Act). The second is a Scottish charitable incorporated organisation ( SCIO) (section 34(1A) of the Act). The third is a community benefit society (BenCom) (section 34(1B) of the Act). The CB must, at all times, have no fewer than
10 members (sections 34(1)(c), 1A(c) and 1B(c) of the Act refers), although Scottish Ministers have discretionary power (section 34(2)) to accept a CB with fewer than 10 members, for example in a remote rural community. The CB’s Articles of Association (AofA) (if a CLBG), constitution (if a SCIO), or registered rules (if a BenCom), must contain provision to meet the requirements of sections 34(1), 34(1A) and 34(1B) of the Act respectively. Ministers must be satisfied that the main purpose of the CB is consistent with furthering the achievement of sustainable development (section 34(4) of the Act). CBs may also wish to attain charitable status; that is a matter for them to decide on.

5. A CB may wish to discuss its proposals with you before it submits an application to register a community interest in land. However, there is no legislative requirement to do so. Some CBs have chosen not to contact the landowner before submitting their application, and the landowner does not know anything about the proposed intention to register an interest until they receive a copy of the CB’s application form and supporting documentation from Scottish Ministers (section 37(5)(a) of the Act). If a CB discusses its plans with you and both you and the CB decide to negotiate, you may both come to a solution, without recourse to the legislation, which is beneficial to both of your needs. Some communities may also find that it may be more appropriate to lease land rather than to purchase it.

2.3 Registrable land

6. A CB can apply to Ministers to register a community interest in any land in Scotland other than excluded land. Land in which a community interest can be registered includes salmon fishings or mineral rights which are owned separately from the land with which they are associated (section 33(2A) of the Act) but excludes the associated rights to oil, coal, gas, gold or silver. A CB may apply to register an interest in these supplementary rights as long as it is, at the same time, applying to register an interest in, has already registered an interest in, or already owns the land to which these rights relate. Other rights which are owned separately from the land, such as oyster or mussel gathering rights, and sporting rights which are owned separately from the land, are also deemed to be excluded land and, as such, CBs cannot register an interest in these rights.

2.4 Single and multiple registrations of land

7. A registered interest must relate to land in the ownership of one party or land in common or joint ownership (see section 37(15)). CBs can also make multiple registrations of land. This can mean (1) that a CB has registered an interest in more than one piece of land (e.g. the parcels of land they want to register an interest in are owned by a number of different owners and/or creditors in a standard security with the right to sell the land), or (2) more than one CB has registered an interest in the same piece of land.

8. CBs should not use multiple applications as a means to obtain a “blanket” registration over an area of land. Should a CB consider submitting multiple applications, it should demonstrate serious intent in each one, both in registering an interest in land and when given the opportunity to purchase the land should the right to buy arise. A CB should make applications in respect of land that, given the opportunity, it would want to proceed with the right to buy.

Multiple registrations on your land

9. If more than one CB has a registered interest in your land when you offer it for sale, each CB will be given the opportunity to decide whether it wishes to proceed with its right to buy. If each CB wishes to proceed with the right to buy in respect of the same piece of land, and both can show the required community support, Ministers will decide which CB will proceed with the right to buy while the other one has its registered interest deleted.

2.5 The Register of Community Interests in Land ( RCIL)

10. The Act provides for the setting up and maintenance of the Register of Community Interests in Land ( RCIL) which contains information and documents relating to each CB’s registered interest in land (section 36 of the Act). The Act sets out the information and supporting documents that must be held in the RCIL (section 36(2) of the Act). Scottish Ministers will instruct the Keeper to enter information on the RCIL at various stages in the community right to buy process from the time they receive a CB’s application and supporting documents to register a community interest in land until after the right to buy is activated. Additional information may be entered into the Register if Ministers so instruct. You may find it helpful to consult the Register to view the applications which have been received to date.

11. The Keeper of the Registers of Scotland ( RoS) is responsible for maintaining the RCIL, ensuring that it is made available for public inspection at all reasonable times and is free of charge. The Register can be viewed on the RoS website (details are in Annex B).

12. If an interest is registered in land that you own, or you are a creditor in a standard security with the right to sell the land, and your contact details change, you must inform Ministers of that new information as soon as possible after the change has occurred.

13. If you are a creditor with a standard security with the right to sell your land, and your details are not included in an application form that has been submitted to Scottish Ministers by a CB, you must notify Ministers of that fact as soon as possible (section 44A of the Act). If it comes to light that your details have not been included, or are incorrect, Ministers will need to consider whether the registered interest in land should be deleted from the RCIL. If you have any questions about whether you should be named on an application to register a community interest in land, you should contact the Community Land Team (contact details at Annex B).

2.6 Applications: “timeous” application and “late” application

14. Applications to register an interest in land are either “timeous” or “late” (i.e. not timeous).

15. A timeous application is one where the land in which the CB wishes to register its interest in has not been offered for sale or where no other steps have been taken with a
view to transfer of the land (see section 37 of the Act). CBs are encouraged to submit an application as early as possible and be pro-active in registering an interest before steps are taken to market the land. We expect the majority of applications to be timeous.

16. A late application is an application which is submitted after the owner, or a creditor in
a standard security with a right to sell the land, has taken steps to transfer the land or sell it, but before missives are concluded or before an option to acquire the land is conferred (see sections 39(1A) and 40(5) of the Act). If the application is a late one, the provisions of section 39 of the Act will apply in addition to those of section 38. A CB is required to provide further information to Ministers to satisfy them that it can demonstrate that:

  • the CB, or a person working with a view to an application being made by the CB, undertook relevant work to prepare an application to register an interest in land, or relevant steps to acquire land (the land does not need to be the land which is the subject of their application), sufficiently in advance of the land being offered for sale (section 39(3) of the Act);
  • if the CB has good reasons why work or steps to acquire the land were not carried out prior to the land being offered for sale or before steps were taken with a view to transfer of the land, Ministers may still accept the application if Ministers are satisfied that the CB has demonstrated that there are good reasons why the application should be allowed, despite the lack of work or steps being taken to acquire the land before the land was offered for sale or transfer the land (section 39(3A) of the Act);
  • if you offered land which is mainly the same as the land which is the subject of the application to register an interest to the CB within the last 12 months, the CB’s application will be rejected unless the CB has good reasons why it did not proceed with the purchase of the land that was offered by you.
  • If you offered land which is mainly the same land which is the subject of the application to a “similar” CB within the last 12 months, the CB’s application will be rejected unless there are good reasons why the CB did not proceed with the purchase of the land that was offered by you (section 39(3)(ab) of the Act). The factors that Ministers will consider when deciding whether the two CBs are “similar” are set out in regulation 11 of the Community Right to Buy (Scotland) Regulations 2015 (see Annex B). These matters are:
    • whether there are directors, charity trustees, officers or members common to both community bodies;
    • whether there are similarities between the purposes of the two community bodies as set out in their AofA, registered rules or constitution;
    • whether there are similarities between the definitions of the two defined communities as set out in the AofA, constitution or registered rules; and
    • the dates the two community bodies were formed, constituted or registered as appropriate and, if applicable, the date on which one of the community bodies was dissolved or removed from the Scottish Charity Register as appropriate.

17. When Ministers are considering whether land has been offered to a CB or a similar CB within the 12 months prior to the date a CB made its application to register a community interest in land, Ministers will also consider whether the land which was originally offered is mainly the same as the land to which the application relates. If the CB or the similar CB is able to demonstrate why they did not proceed with the purchase of the land, the application to register a community interest in land will not be rejected by Ministers on those grounds.

18. The CB is also required to provide evidence of sufficient community support for its proposals. CBs have, for example, gathered evidence of community support by having a petition signed by residents of their community. For a late application a higher level of community support is required:

  • there must be a significantly greater level of support within the community than that required for a timeous application (for a “timeous” application, Ministers expect to see at least 10% support, though in exceptional circumstances, less than 10% may be acceptable); and
  • the information provided by the CB in their application to register their interest that it is strongly indicative that it is in the public interest that the community interest be so registered.

19. Details of the stages of the process to register a community interest in land are set out in Annex A.

2.7 The process to register a community interest in land

Timeous application

20. Following receipt of a CB’s application to register a community interest in your land, Ministers will write to you and any creditor with a standard security that is recorded in the application. They will enclose a copy of the application and supporting documents (in terms of section 37(5)(a) of the Act) and will give you 21 days in which to provide any views you wish to put forward on the application (section 37(5)(b)). Failure to provide comments within this time will be understood as you having no views on the application. Ministers have no obligation to consider views submitted outwith this period. The letter will also inform you that a temporary prohibition has been placed on the land which is the subject of the application and which Ministers will consider should have a registered interest in it (section 37(5)(e) of the Act). This prevents you from disposing of the land or taking any action with a view to transfer the land. Any transfer of the land in breach of this prohibition has no effect and so does not constitute a legal transfer of title to the land (section 40(2) of the Act).

21. These timescales may be affected by local and public holidays in the place where the interest is to be registered (section 67A refers). For the dates of public and local holidays you should consult your local authority, who determine them based on local tradition (not statutory authority) and after consultation with local business interests (public and local holiday timings do not affect the period of time specified in the timescale for the period of buying he registered land (section 56(3)(a) or (b), valuation (section 60(3) or appeals (sections 61-64)).

22. Where Ministers receive an application that does not disclose that missives have been concluded or an option conferred then you as owner of the land or a creditor in a standard security with a right to sell the land, must provide evidence of concluded missives or an option agreement to Ministers within 21 days of receiving a copy of the application. That evidence will not be placed on the RCIL.

23. Where there is an option agreement, you as owner, must provide information on the date of the option agreement and information on whether or not and how it may be extended.

24. If the CB’s application is one that discloses that missives have been concluded or an option has been conferred, Ministers are not required to send a copy of the application to you as owner or the creditor in a standard security with a right to sell the land. Ministers will send a copy of the application to you as owner and any creditor and require you or the creditor as appropriate to provide evidence of the concluded missives or the option conferred. You will also be required to provide further information about the option conferred.

25. If you have been sent a letter which includes the prohibition but you are not the owner of the land subject to the application, or if any part of that land is not owned by you, or is subject to a standard security which has not been noted in the application form, you should immediately inform Ministers of that fact.

26. Where there is a standard security in an interest in any land to which a CB’s application relates, the creditor should note their responsibilities in terms of section 37(5)(c) and (6) of the Act. Ministers will ask them to confirm whether any of the circumstances described in section 37(6) of the Act has arisen (relating to the calling up and serving of notices) and, if these apply, Ministers will also ask for your creditor’s views on the application.

27. Where you have taken steps with a view to sale or transfer any part of the land referred to in the CB’s application form, you must inform Ministers of the fact that you believe that the application is a “late” rather than a “timeous” application (section 39(2) of the Act) and supply evidence of the steps you have taken to transfer it. The CB may not be aware that you have taken steps to sell or transfer the land in which it wishes to register its interest. The CB will then be required to provide further information to Ministers to satisfy them that, in addition to meeting the criteria in section 38 of the Act, it can fulfil the additional criteria noted in section 39 of the Act for late applications.

28. After Ministers receive your views, and any views of a creditor in a standard security with the right to sell the land, they are copied to the CB which, in turn, has 21 days from the date of the Ministers’ invitation in which to comment on them (section 37(9) of the Act) unless the application is a “late” one. Your views, those of any creditor in a standard security, and those of the CB, will not be entered into the RCIL. Once all views have been received, Ministers will consider them with a view to making their determination of the application.

29. Ministers have 63 days from the date of receipt of a CB’s “timeous” application in which to notify their decision on whether the application has been approved or rejected (section 37(17) of the Act). There may be cases where the Ministers’ decision letter is not issued within this period. This does not, however, affect the validity of their decision (section 37(19) of the Act). Following their consideration, you, any creditor in a standard security, and the CB will receive notification of their decision (section 37(17)(a) and (c) of the Act). This is in the form of a notice stating reasons for their decision and information on the effect of the registration.

Appeal of the Ministers’ decision

30. If you, or a creditor in a standard security with the right to sell the land, are unhappy with the Minister’s decision on the registration of a CB’s community interest, you, or the creditor may choose to appeal the decision (see section 61(1) and (3A) of the Act). A person who is a member of the community may also wish to appeal this decision (section 61(3)(a)). The party lodging the appeal with the sheriff must notify Ministers and the other parties to the application of the appeal (section 61(6) of the Act). Appeals may be made, by summary application, to the sheriff in whose sheriffdom the land or any part of it which is the subject of the registration is situated. Appeals must be lodged within 28 days of the decision by Ministers (section 61(4) of the Act). Section 61(6) of the Act provides details of who must be informed of an appeal and by whom. The sheriff’s decision is final and may require rectification of the Register (section 61(7) of the Act).

The registration process – late application

31. There are a number of differences in the procedures for the registration of a late application. Following the receipt of a CB’s application to register a community interest in land owned by yourself, or which you have an interest in as a creditor in a standard security with the right to sell the land, Ministers will write to you in relation to the application (section 37(5) of the Act). They will enclose a copy of the CB’s application and supporting documentation (in terms of section 37(5)(b) of the Act) and will give you 21 days in which to provide and submit any views that you wish to put forward on the application.

32. If you have taken steps with a view to transfer the land, you are required to inform Ministers that you believe the application to be late (section 39(2) of the Act). You should also provide evidence to show that the application is a late one. The CB will then be required to provide further information to Ministers to satisfy them that the additional criteria for a late application has been met (section 39 of the Act).

33. As for timeous applications, Ministers have no obligation under the Act to consider views submitted outwith the 21-day period allowed to you. Failure to provide comments within this time will be understood as you having no views on the application.

34. When Ministers write to you with the CB’s application to register an interest in land, they will also inform you that a temporary prohibition has been placed on the land set out in the application (section 37(5)(e) of the Act). This prevents you from selling or transferring the land and taking a view to transfer the land while Ministers are considering the CB’s application to register an interest in your land. Any transfer of the land in breach of this prohibition has no effect and does not constitute a legal transfer of title to the land (section 40(2) of the Act).

35. On receipt of your views and those of any creditor in a standard security in the land, a copy will be sent to the CB. The CB will not, however, be invited to submit comments on them (as it would if the application was a timeous one).

36. These timescales may be affected by local and public holidays in the place where the interest is to be registered (section 67A refers). For public and local holidays you should consult your local authority, who determine them based on local tradition (not statutory authority) and after consultation with local business interests (public and local holiday timings do not affect the period of time specified in the timescale for the period of buying the registered land (section 56(3)(a) or (b)), valuation (section 60(3) or appeals (sections 61-64)).

37. Where Ministers receive an application that does not disclose that missives have been concluded or an option conferred then you as owner of the land or a creditor in a standard security with a right to sell the land, must provide evidence of concluded missives or an option agreement to Ministers within 21 days of receiving a copy of the application.

38. Where there is an option agreement, you, as owner, must provide information on the date of the option agreement and whether or not and how it may be extended.

39. If an application is one that discloses that missives have been concluded or an option has been conferred, Ministers will send you a copy of the application and require you to provide evidence of the concluded missives or the option conferred. The owner will also be required to provide further information about the option conferred.

40. Ministers shall, within 30 days of receiving a late application, send a notice to you and to the CB of their decision on whether the application to register a community interest in your land has been approved (section 39(2)(b)(ii)). There may be cases where the Ministers’ decision letter is not issued within this period. This does not, however, affect the validity of their decision (section 37(19) of the Act). Ministers will provide reasons for making their decision. If Ministers decide to approve the CB’s application, they will direct the Keeper to register the CB’s interest in the RCIL (section 37(20) of the Act). If Ministers decide not to approve the application, the interest in land will not be entered into the RCIL and the temporary prohibition on your land will be removed.

Appeal of the Ministers’ decision

41. If you, or the creditor in a standard security with the right to sell the land, are unhappy with the Minister’s decision on the registration of a CB’s community interest in land, you or the creditor may choose to appeal the decision (section 61(1) and (3A) of the Act). In addition, a person who is a member of the community may also wish to appeal a decision (section 61(3)(a)). Paragraph 30 above sets outs the appeals process.

2.8 Effect of a registered interest in your land

42. Following the approval of a CB’s application, a prohibition comes into effect (section 40(1) of the Act) (a temporary prohibition was in place following the Ministers’ receipt of the CB’s application to register a community interest in land). This means that for as long as there is a community interest registered in relation to your land, you are prohibited from transferring the registered land, except where you are undertaking an exempt transfer
under section 40(4) of the Act (see paragraphs 45 to 47 below) until the registration
no longer applies.

43. The registration is valid for 5 years from the date of the Ministers’ approval, unless:

  • the CB requests its registered interest to be deleted;
  • the CB refuses the opportunity to exercise its right to buy the land;
  • there has been, since the interest in land was registered, a change in any matters to the extent that if the application to register the community interest were made afresh, Ministers would decide that the interest was not to be entered in the RCIL; or
  • it is continued in terms of an application for re-registration for a further period of 5 years.

44. Depending on the terms of the lease, any formal lease arrangement that is in place and is in effect at the time that a registered interest in place may continue.

Transfers exempt under the Act

45. As long as a community interest is registered in your land, you (as owner or creditor in a standard security having the right to sell the land) are prohibited from transferring the land or from taking any action with a view to transferring it, unless that transfer is specifically exempt in terms of section 40(4) of the Act. The exempt transfers include:

  • a transfer as a gift (section 40(4)(a));
  • as an order of a court or a decree in an action for the division and sale of land (section 40(4)(b)(b));
  • a transfer between spouses or civil partners when pursuing an arrangement between them which they entered into after they ceased living together (section 40(4)(c));
  • a transfer of croft land to the crofter tenanting it (section 40(4)(d));
  • a transfer between companies in the same group (section 40(4)(e)); or
  • a transfer to a statutory undertaker to enable it to carry out its undertaking (section 40(4)(f)).

For a full list of the exempt transfers you should consult section 40(4) of the 2003 Act.

46. If you intend to transfer the land under any of the exemptions listed in section 40(4) of the Act, you are required, in terms of section 43(2), to incorporate a declaration of exemption in your transfer document. The deed should detail which exemption provision applies. If your exemption relates to a transfer as a gift (section 40(4)(a)), between companies in the same group (40(4)(e)), in relation to partners in a firm or trustees in a trust (section 40(4)(h)), the deed must confirm that the transfer does not form part of a series of transfers where the main purpose or effect is to avoid the requirements or consequences of the Act. Action with a view to a transfer, as described in section 40(1)(b) of the Act, could be action such as an oral notification to another party that you intended to sell the land, though the Community Land Team would require evidence to that effect.

47. If you complete a transfer under the terms of section 40(4), the CB’s registration will remain and the prohibition on the registered land will then apply to the new owner. The right to buy will then be activated if the new owner takes steps to dispose of the registered land.

48. If you transfer the registered land under any of the exemptions in section 40(4) of the Act, you must inform Ministers within 28 days of that transfer taking place. In informing Ministers of that transfer, you must inform Ministers of the transfer, the name and address of the person to whom the land was transferred to, the date of the transfer.

49. You should also provide Ministers with a description of the land which was transferred. You should provide maps, plans or other drawings of the land (section 41(3) of the Act).

50. The maps, plans or other drawings must meet the requirements of regulation 12 and Schedule 9 of the Community Right to Buy (Scotland) Regulations 2015 (see Annex B).
In particular, they should:

  • be made to a metric scale, corresponding to a scale used by the Ordnance Survey, show a north point and give OS Grid References and sufficient surrounding details to enable the location to be determined;
  • show the boundary of the land which has been transferred;
  • be to one decimal place (e.g. 8.2 metres, 2.3 ha). Imperial measurements (e.g. 1 inch to 8 feet) should not be used;
  • any salmon fishing or mineral rights which are the subject of the CB’s application should be clearly marked on the map, plan or drawing.

Transfers in breach of the Act

51. If you transfer, or attempt to transfer, the land which is the subject of a CB’s registration without informing Ministers and the CB, you will have breached the prohibition set out in sections 37(5)(e) and 40(1) of the Act. The CB is then entitled, in terms of section 50 of the Act, to apply to the Lands Tribunal for Scotland to buy the land as if you had informed Ministers of your intention to sell your land in terms of section 48(1) of the Act.

52. Where a breach has taken place, sections 58(5) and (6) of the Act apply. They set out that where you, as an owner, refuse or fail to make deeds and other documents available or they cannot be found, a CB may apply to the Lands Tribunal for Scotland to order that you or another person appearing to the Tribunal to be the person who has these deeds and documents to produce them. If you, as the owner, refuse or fail to effect the transfer of the land, the CB may apply to the Lands Tribunal for Scotland to authorise the principal clerk to adjust, execute and deliver such deeds or other documents which will enable the transfer of the land to be completed, as if done by you, the owner. A transfer in breach of the Act has no effect and does not constitute a legal transfer of title to the land.

2.9 Re-registration of a community interest in your land

53. If a CB wishes its registration to continue after the initial five-year registration, then it must apply to Ministers to re-register its interest (section 44 of the Act). Ministers will write to the CB 12 months in advance of the expiry date of its registration to ask the CB whether
it wishes its registration to continue beyond its expiry date and invite it to submit an application to re-register its interest (section 44(5A) and (5B)). An application to re-register
an interest must be made within the six-month period prior to the expiry of the registration (section 44(2) of the Act). If the CB does not submit its application to re-register a community interest in land within that timescale, its registered interest in land will lapse and the prohibition on your land will be lifted. A CB, may then decide to submit a further application to register an interest at a later date.

54. Applications to re-register an interest in land will be considered in the same way as applications for registration (section 37 of the Act). You will be invited by Ministers to offer your views on the CB’s application to re-register its interest in land. The CB will also be invited to make comments on any views you submit. If Ministers decide to approve the
re-registration, it will continue for a further five years from the expiry date of the previous registration. Any further applications to re-register that interest must be made every
five years thereafter.

Appeal of a re-registration of interest

55. As for the registration process, you and the creditor in a standard security with the right to sell the land can appeal the Ministers’ decision (section 61(1) and (3A) of the Act).
In addition, a person who is a member of the community may also wish to appeal a decision (section 61(3)(a)). Should you or the creditor successfully appeal a decision to re-register a community interest in land, the renewed registration will be lifted and the registration deleted from the RCIL.

Deletion of a registered interest in land

56. If, at any time, a CB decides that it wishes its registration to be deleted or it does not wish to proceed with its right to buy, it is required to inform Ministers, in writing, of that fact (section 54(1) of the Act). On receipt of this information, Ministers will direct the Keeper of the RCIL to delete the CB’s community interest from it. Ministers will also notify you of the deletion of the CB’s interest. Alternatively, if, Ministers are satisfied that there have been, since they decided that a community interest should be registered, a change in any matters to the extent that, if the application to register that community interest were made afresh, they would decide that the interest is not to be entered in the Register, they shall direct the Keeper to delete that interest. Before they delete that interest Ministers will have first requested views from both you and the CB on the matter (section 45 of the Act).

57. Following the deletion of a CB’s interest, you are free to offer the land for sale unless another application is made to register an interest, for example, where there is another registered interest in the land.

After an interest has been registered

58. After Ministers have registered an interest in your land you have a number of duties
to undertake in respect of the registered interest.

59. If the contact information for your as landowner changes after the interest in land has been registered, you must inform Ministers of any changes as soon as possible thereafter (section 44A(3) refers). If there is a creditor in a standard security with a right to sell the land and their details change, the owner must notify Ministers as soon as is reasonably practicable. The owner must also notify Ministers of any changes to the information in an application relating to a creditor in a standard security as is reasonably practicable (section 44A(4) refers).

60. If the application is one where there is a creditor in a standard security with an interest in the land to which the application relates and the application did not disclose the existence of such a creditor, the owner must notify Ministers of their existence together with their contact details, as soon as is practicable after the interest has been registered (section 44A(5)
and (6) refer).

2.10 Notification of your intention to sell or transfer land

61. If you decide to dispose of the land which is the subject of a CB’s registered interest, you are required to inform the CB, or CBs (if there is more than one registered interest in your land), and Ministers of your proposed transfer in writing (as required by section 48(1)
of the Act). Your notification must be made using the prescribed form which is contained in Schedule 6 of the 2015 Regulations (see Annex B). The stages of the right to buy process
are noted in Annex A.

62. Ministers then have seven days to ask the CB (or CBs) to confirm, in writing, whether it (they, if there is more than one CB with a registered interest in the same land) wish to exercise their right to buy. You will receive a copy of this notice (section 49(5) of the Act and Schedule 7 of the 2015 Regulations) (see Annex B). The CB (or CBs) have 30 days in which to respond. If the CB (or CBs) confirms their intention to exercise their right to buy, Ministers will decide which CB should proceed to buy the land. The unsuccessful CB’s right to buy will be extinguished and its registered interest deleted from the Register.

63. The successful CB has eight months from the date it confirms its intention to exercise its right to buy to raise the purchase price, make payment, and conclude the transfer of the land and any moveable property, as also any rights (section 56(3) of the Act). If, however, the CB fails to conclude the transfer within this period (or within two months of the determination or abandonment of the appeal, as may be, or such longer period as may be agreed between you and the CB) the CB’s right to buy will be extinguished and its interest removed from the RCIL.

64. If the CB fails to advise Ministers within the 30-day period that it wishes to exercise its right to buy, its right to buy will be extinguished and its registration removed from the RCIL. Ministers will inform you of this fact and you will be free to dispose of the land as you wish unless another CB submits a late application to register its interest.

2.11 Valuation of your land

65. Within seven days of a CB confirming that it wishes to exercise its right to buy your land, Ministers will appoint an independent valuer. The aim of this independent valuation is to ensure that you receive a fair price, at market value, for your property. It is not the purpose of the Act to allow the CB to purchase land cheaply.

66. The definition of “market value” is set out at section 59(6) of the Act. The valuation
will consist of the value of your land and any moveable property included in the sale. This reflects market value and ensures the land and any moveable property are transferred at a fair price. Where a CB is purchasing a part of your land, the amount of any depreciation in the remaining land included in that lot will be compensated (as provided for in section 59(6)(b) of the Act).

67. The appointed valuer acts on behalf of Scottish Ministers and not for any other party involved in the right to buy of your land. The valuer will seek written views from yourself and the CB on the value of the land and any moveable property associated with that land prior to intimating the valuation price (the assessed value) (section 60(1) of the Act). Where you submit views to the valuer, the CB will be given the opportunity to comment on them. You will have the opportunity to comment on any representations made by the CB to the valuer. When considering what the assessed value of the land is, the valuer will take all comments received into consideration. The valuer will also take account of the known existence of any person who would be willing to buy the land at a price higher than others might be expected to pay. The assessed value of the land and any moveable property will include a brief statement which provides reasons for the valuation figure (the assessed value).

68. The valuer has eight weeks (or longer if agreed by Ministers in terms of section 60(3) of the Act) to provide Ministers, you and the CB with the assessed value of the land. The price to be paid for the land and any moveable property is: the price agreed between the CB and the owner of the land; or where no such agreement is reached, the price equal to the value assessed by the appointed valuer, or of that value is subject to an appeal, the value determined by the appeal.

69. You should consider whether you require a separate valuation for your own purposes. Should you appoint your own valuer, you must meet your own costs, as these will not be met by Ministers. Ministers will only pay the costs of their appointed valuer.

Withdrawal from the community right to buy: expenses of valuation of land

70. If you decide to withdraw the land from sale after Ministers have appointed their valuer to assess the value of the land, Ministers may require you to pay their expenses in connection with that valuation (section 60A of the Act).

71. Where such a situation arises, Ministers will consider sending demand for their expenses in relation to the valuation. They may request information from you to assist them in deciding whether or not to send you the demand for payment of expenses (section 60A(2) of the Act).

72. Where Ministers make a demand for payment, you can decide whether you want to appeal the demand. Appeals must be made to the sheriff within 21 days of receipt of the demand for payment.

73. You must pay that demand within 28 days of receiving it. If you have made an appeal against the demand, and it is not upheld by the sheriff, you must make the payment within 28 days of its determination.

Appeal of the valuation

74. Should you or the creditor in a standard security (or the CB), be unhappy with the valuation, an appeals procedure is available (section 62 of the Act). An appeal against the valuation should be made to the Lands Tribunal for Scotland within 21 days from the date when the valuer intimates the assessed value of the land (the valuation figure) (section 62(2) of the Act). The Lands Tribunal for Scotland has eight weeks from the conclusion of the appeal hearing to intimate its decision (section 62(7) of the Act). If the Lands Tribunal is unable to issue a written statement within eight weeks, it will notify the parties to the appeal when it will issue its written decision (section 62(7A)(b)).

75. The Lands Tribunal for Scotland ( LTS) may reassess the valuation and substitute its own for that of the appointed valuer. The value of the land and any moveable property used in connection with, and being sold with, the land, or both, as determined by the LTS is the price the CB will pay to purchase the land and any moveable property unless a different price is agreed by yourself and the CB.

76. You should be aware that as Ministers only appoint the valuer, that they are not a competent party to any valuation appeal (section 62(9) of the Act). If you call the valuer to appear as a witness on your behalf, any costs will not be met by the Scottish Ministers.

2.12 The CB’s right to information form

77. The CB cannot exercise its right to buy unless it has the approval of the community and the consent of Ministers. The CB must satisfy Ministers on a number of points (section 51(2) and (3) of the Act refers). This includes providing evidence to show that the CB continues to comply with the provisions of section 34 of the Act, that what the CB proposes to do with the land is compatible with furthering the achievement of sustainable development, and that the proposed purchase of the land is in the public interest. A ballotter is also appointed by and funded by Ministers to carry out a ballot of the community to confirm that there is sufficient support for the CB’s exercise of its right to buy. The ballotter will send a copy of the ballot result to you as set out in Schedule 11 of the 2015 Regulations (see Annex B).

2.13 Ballot

78. Following the intimation of the assessed value of the land, a ballot of the defined community is held to assess whether there is sufficient support within the community for the CB’s proposals to proceed with the right to buy. The ballot will be a secret postal ballot. The ballotter will be appointed by Ministers. They will be a person who appears to Ministers to be independent and to have knowledge and experience of conducting ballots. Ministers will meet the costs of undertaking the ballot.

79. The ballot is to be carried out by the ballotter within 12 weeks of their appointment by Ministers (section 52(4) of the Act). If the valuer requests an extension to the period to undertake their valuation, the period in which the ballot has to be conducted will be longer. Ministers will inform you, the creditor in a standard security with the right to sell the land and the CB, if there is to be a change to the timescales in which the ballot is to be conducted. The detailed requirements for the ballot are set out in sections 51, 51A, 51B, 51C and 52 of the Act and regulations 13 to 21 of the 2015 Regulations (see Annex B).

80. As noted, the ballot should be conducted by the ballotter as a secret postal ballot. If you are resident in the community and eligible to vote in a local government election, you will be entitled to vote in the ballot. If you are in doubt as to whether you are entitled to a vote, you should discuss this matter with the CB or, if this is not possible, with the Community Land Team.

81. If you are an eligible voter you will receive a ballot paper (with a stamped addressed envelope for the return of your vote) and information on the CB’s proposed purchase of the land. You will be informed of the closing date and time for the return of the ballot papers in the accompanying notification.

82. The defined community will be seen as giving its approval to the CB exercising its right to buy if Ministers are satisfied that the proportion of the members of the community who voted in the ballot is sufficient to justify the CB proceeding to buy the registered land, and that the majority of those community members who voted in the ballot voted in favour of the proposition to buy that land (section 51(2) of the Act).

83. If you have any objections to the ballot, you should discuss these with the ballotter as early as possible. This should preferably take place before the ballotter submits the ballot results to Ministers (the ballot is to be carried out within 12 weeks of the appointment of the ballotter by Scottish Ministers). You may also wish to discuss any unresolved objections with the Community Land Team. Ministers will pay particular attention to determine whether the ballot has been conducted in accordance with the legislative procedures. If Ministers decide that the ballot was not conducted in accordance with them, then another ballot will be conducted as set out in regulation 20 of the 2015 Regulations (see Annex B).

84. Ministers have 21 days from receiving the ballot result in which to send notice of their consent to buy the land to you, the creditor in a standard security with the right to sell the land, and to the CB (section 51(5) and (6) of the Act). Ministers will also direct the Keeper to enter a record of their decision in the RCIL. Where more than one CB has confirmed that it will exercise their right to buy the land, Ministers also have 21 days following the receipt of the last ballot conducted by these bodies to notify their decisions to each of the community bodies.

Circumstances affecting the ballot

85. The ballotter will notify the result of the ballot to you, any creditor in a standard security with the right to sell the land, the CB and Ministers.

86. If the CB is aware of any circumstances that may have had an impact on the result of the ballot, it must notify you and Ministers in writing within 14 days of the date when the CB was notified of the ballot result.

87. In making a representation to Ministers, the CB must provide evidence that ensures that it is reasonably necessary to (1) establish the circumstances that have affected the ballot result and (2) the effect that these circumstances have had on the result of the ballot (section 51C(1) and (2)).

88. Ministers will send the CB’s representations to you and any creditor with a standard security with the right to sell the land, and ask you to provide comments on them, and provide any evidence you may have (section 51C(5)). You must send your comments to Ministers within seven days. You must also send a copy of your comments to the CB, which is then given the opportunity to comment on your comments and send them to Ministers (section 51C(5)-(7) of the Act).

89. Ministers will consider all the representations and evidence they receive under section 51C of the Act when deciding whether they are satisfied that there have been circumstances that have affected the result of the ballot (section 51C(10) of the Act refers).

Ballot not conducted as prescribed in accordance with the relevant provisions

90. There may be cases where a ballot is not conducted in accordance with the relevant provisions of the Act and Regulations (sections 51, 51A, 51B, 51C and 52 of the Act and regulations 14 to 17 of the 2015 Regulations) (see Annex B). Ministers expect this to occur only very exceptionally. In order to clarify what happens when this situation arises, Ministers have set out a process to provide a review of a ballot (section 52(7) of the Act and regulation 19 of the 2015 Regulations). The review of the ballot process is carried out by Ministers.

91. The purpose of this review process is to ascertain whether the ballot was conducted as prescribed in accordance with the relevant provisions, and, if it is decided that a ballot was not conducted in accordance with the regulations, to order that a further one is conducted by a ballotter as prescribed, and to carry out that ballot as prescribed. When a request to review the ballot is made, Ministers will consider whether or not the ballot was properly conducted. Ministers can also decide to review whether a ballot was conducted.

92. A request for a review of whether a ballot was conducted in accordance with the regulations may be made by the landowner, a creditor in a standard security with a right to sell the land, as well as the CB. In addition, where Ministers have reason to believe that the ballot may not have been conducted in accordance with the regulations (regulations 14 to 17), they may also request a review.

93. Ministers will undertake the review of the ballot. If there are two or more requests for a review of the same ballot, Ministers can consider or decide upon them together, or separately.

94. If you, or the creditor with a standard security with the right to sell the land, wants to request a review of the ballot, you must make your request to Ministers in writing within 21 days after the date on which the ballotter notified the result of the ballot. In your request, you must set out the reasons why you believe that the ballot was not conducted in accordance with the regulations.

95. If Ministers believe that the ballot may not have been conducted in accordance with the relevant provisions as prescribed, and decide that they want to review the ballot, they must also set out their reasons for their reasons for a review.

96. Where you request a review, Ministers must send a copy of your request for review to the CB and any creditor in a standard security with a right to sell the land where there is one, and also to the ballotter. When they do so, they must invite these parties to provide views within 21 days that the invitation is sent.

97. Where Ministers themselves decide that a review should be made, they must send a copy of their reasons for a review to the CB or creditor in a standard security with a right to sell the land or landowner, as appropriate, and to the ballotter. In doing so, they must invite these parties to provide views within 21 days that the invitation is sent.

98. Following receipt of these views Ministers must, within seven days, send them to the creditor in a standard security with a right to sell the land, the CB, and the ballotter, and ask them to provide further views. These views must be made within 14 days after the invitation was sent.

99. Ministers then have 28 days from the day after they have received these last views to consider them and all the information sent to them in relation to the review request, and to notify you, the creditor in a standard security with a right to sell the land, the CB, and the ballotter, of the decision of their review and the reasons for their decision.

100. If Ministers decide that the ballot was not properly conducted then a further ballot will be carried out (regulation 20 of the 2015 Regulations).

Further ballot to be carried out

101. If Ministers conclude that a further ballot is to be conducted, it must be conducted in accordance with the requirements of the regulations, and within 35 days from the date in which Ministers send notification of the reasons why a further ballot must be conducted (regulation 20 of the 2015 Regulations) (see Annex B). The cost of this further ballot will be met by Ministers (section 52(7) of the Act and regulation 20(6) of the 2015 Regulations).

102. The ballotter will notify you, any creditor with a standard security with a right to sell the land, and the CB of the result of that ballot (regulation 20(4) of the 2015 Regulations).

Appeal against the Ministers’ decision to approve the right to buy

103. If you or a creditor in a standard security with the right to sell the land are unhappy with the Ministers’ decision to approve a CB’s exercise of its right to buy the land on which it has a registered interest, you or the creditor may choose to appeal that decision (section 61(1) and (3A) of the Act). In addition, a person who is a member of the community may also wish to appeal a decision (section 61(3)(b)).

104. Appeals may be made, by summary application, to the sheriff in whose sheriffdom the land or any part of it which is the subject of the registration is situated. Appeals must be lodged within 28 days of the decision by Ministers (section 61(4) of the Act). Section 61(6)
of the Act provides details of who must be informed of an appeal and by whom. The sheriff’s decision is final and may require rectification of the Register (section 61(7) of the Act).

2.14 Transferring your land to the community body

105. You have eight months from the date the CB confirmed its intention to exercise its right
to buy in which to transfer the registered land to the CB or two months following any appeal decision, or longer if mutually agreed between yourself and the CB. You may withdraw from the sale at any time. However, you should be aware that you may be liable for valuation expenses incurred by the Scottish Ministers (section 60A refers).

106. If you withdraw from the sale, then the CB’s registered interest and the prohibition on the land will remain and you will be unable to sell the registered land to any other party other than the CB. Unless the CB’s registered interest is removed for other reasons, your withdrawal from the sale does not remove the CB’s right to buy the land should you wish to sell at a later date.

107. It is expected that, as you are a willing seller and you wish to dispose of the registered land, good communication will lead to a successful transfer of your land to the CB within the period allowed for the transfer. If there is any unreasonable delay in transferring title of the land by either you or the CB, the Act allows a CB or landowner to apply to the Lands Tribunal for Scotland to order the responsible party to take corrective action within a stated time. The party who makes such an application to the Lands Tribunal must inform Ministers of this approach in writing within seven days of the date the party approached the Lands Tribunal (section 57 of the Act). If you are the responsible party, failure to conform with the order will result in the Lands Tribunal for Scotland ordering you to transfer the land to the CB on the terms which it has specified. A further failure will result in the Lands Tribunal for Scotland effecting the transfer on your behalf. If the CB does not adhere to the transfer deadline and you and the CB have not agreed an extension in which to complete the transfer, then the right to buy will be extinguished (section 56(5)).

2.15 Compensation

108. Section 63 of the Act sets out the circumstances in which a person, other than a CB, which has suffered loss or incurred expense arising from the operation of Part 2 of the Act, which is additional to costs normally incurred during a transaction of land and any moveable property, may claim compensation. The Act also sets out that any person who has suffered loss or incurred expense as a result of the suspension of a right of pre-emption, redemption or reversion is also entitled to compensation (section 63(4) of the Act). The circumstances in which compensation is payable are set out in section 63(1) of the Act. The procedures for recovering costs are set out in the the 2015 Regulations see Annex B).

109. Following the exercise of the CB’s right to buy, compensation will not be payable for any loss or expense after the eight-month period allowed for the land to be transferred to the CB (section 63(3) of the Act). Any claim for compensation beyond that period falls outwith the scope of the Act.

Appeal of the Ministers’ decision on compensation

110. If you are unhappy with the Ministers’ decision on compensation you can appeal to
the Lands Tribunal for Scotland within 21 days of that decision being made (section 64
of the Act). The Lands Tribunal for Scotland may substitute its decision on the amount payable for that determined by Ministers. This may be higher or lower than the amount decided upon by Ministers.

Duty to provide information about community right to buy

111. Ministers may from time to time decide to monitor or evaluate any impact that the community right to buy has had.

112. To undertake monitoring or evaluation, Ministers may request that you, as owner or
a former owner of land that was subject to an application to register an interest in land or which was subject to the right to buy, provide information that they may reasonably require on the effect of the operation of the provisions that they have had or may be expected to have. This will relate to matters that are specified in the Ministers’ request.

113. If you are requested by Ministers to provide information, you must provide it to the extent that you are able to do so.

Mediation

114. Where a CB is seeking to register an interest in land or is exercising its right to buy,
a number of interested parties may request Ministers to take such steps as they consider appropriate for the purpose of arranging, or facilitating the arrangement of mediation in relation to the proposed registration of the interest in land or the exercise of the right to buy.

115. The interested parties that may make the request to Ministers are: the owner of the land; any creditor in a standard security with the right to sell the land or any part of the land; and your CB (section 97Z1(3) of the Act refers).

116. You should contact the Community Land Team in the Scottish Government if you have any questions relating to mediation.

2.16 Conclusion

117. The community purchase of land under Part 2 of the Land Reform (Scotland) Act 2003 is one means that is available to communities to use when seeking to purchase land that a community has an interest in. You may wish to consider selling your land to the community by agreement and without having recourse to the Act. The key to such a transfer is good communication between yourself and a CB. Reliance on the Act has the advantage that it provides you with a potential buyer and a guarantee of a market value purchase price where otherwise the land could be for sale on the open market for some time.

118. The Community Land Team cannot provide legal advice and must remain impartial at
all times: its main role is to provide advice to Ministers, on a case-by-case basis, at various stages in the right to buy process. However, the Community Land Team can help you with any process-related questions you have on the procedures to be followed. We recommend that your CB contacts the Community Land Team as early as possible to benefit from its expertise.

119. You may wish to use the services of a solicitor at an early stage in the community right to buy process. The Community Land Team is happy to assist with any questions you may have about the process. The team cannot, however, provide legal advice nor, due to the impartiality required in advising Ministers on a case-by-case basis, advice which would be seen as supporting a particular group, such as yourself as landowner or creditor in a standard security or the CB involved in a specific case (contact details are contained in Annex B).


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